Amicus Curiae

The newest episode of Desperate Housewives aired on Sunday, November 7, 2010, and is entitled “A Humiliating Business.” In this episode, Bree experiences hot flashes, so she goes to the gynecologist to see if she is going through “the change” also known as menopause. Her regular gynecologist is not in, so she is forced to see a new gynecologist, Dr. Mary Wagner. The doctor confirms Bree’s worst nightmare.  She is going through menopause. Bree immediately asks the doctor if there is a way to mask the symptoms because she does not want to ruin the relationship she is currently in with a man seventeen years younger than she. Dr. Wagner is amused by Bree’s relationship with a younger man and agrees to help.

Later on in the episode, Keith, Bree’s much younger boyfriend, introduces Bree to his parents. Lo and behold, Dr. Wagner is Keith’s mother. The fact that Bree is hiding menopause from her own son clearly bothers the doctor because she keeps trying to expose Bree’s little secret during dinner. When the doctor asks if everyone at the table would like to hear an interesting story from work, Bree says no and reminds Dr. Wagner of her duty as a doctor to maintain patient confidentiality. Dr. Wagner tries to blame her potential disclosure on too much alcohol.

Patients assume what they tell their doctor is confidential, but is it? What are the legal consequences a doctor could face should she disclose the patient’s private information? Since the state where this show takes place is fictional, we will look at the laws in my home state of Alabama.

Alabama recognizes causes of action for breach of fiduciary duty and breach of implied contract resulting from a physician’s unauthorized disclosure of information acquired during the physician-patient relationship.

In the case that established this principle, Horne v. Patton, the court reasoned that a patient should be entitled to freely disclose his symptoms and condition to his doctor in order to receive proper treatment without fear that those facts may become public knowledge. Only thus can the purpose of the relationship be fulfilled. Therefore, a medical doctor is under a general duty not to make disclosures, other than court ordered disclosures, of information acquired in the course of the doctor-patient relationship and that a breach of that duty will give rise to a cause of action.

Furthermore, Alabama statute 540-X-09 -.07 below gives the state licensing board for the healing arts the power and imposes on it the duty of suspending or revoking a doctor’s license who willfully betrays a professional secret. The statute states:

(1) The Alabama Board of Medical Examiners recognizes the movement toward the restructure of the delivery of health care and the significant needs that motivate that movement. The resulting changes are providing a wider range and variety of health care delivery options to the public. Notwithstanding these developments in health care delivery, the duty of the physician remains the same: to provide competent, compassionate, and economically prudent care to all his or her patients. Whatever the health care setting, the Board holds that the physician’s fundamental relationship is always with the patient, just the as Board’s relationship is always with the individual physician. Having assumed care of a patient, the physician may not neglect that patient nor fail for any reason to prescribe the full care that patient requires in accord with the standards of acceptable medical practice. Further, it is the Board’s position that it is unethical and unprofessional for a physician to allow financial incentives or contractual ties of any kind to adversely affect his or her medical judgment or practice care.

(2) Therefore, it is the position of the Alabama Board of Medical Examiners that any act by a physician that violates or may violate the trust a patient places in the physician places the relationship between physician and patient at risk. This is true whether such an act is entirely self-determined or the result of the physician’s contractual association with a health care entity. The Board believes the interests and health of the people of Alabama are best served when the physician-patient relationship remains inviolate. The physician who puts the physician-patient relationship at risk also puts his or her relationship with the Board in jeopardy.

(3) The Alabama Board of Medical Examiners is involved in the process of licensing physicians as a part of regulating the practice of medicine in this state. A license to practice medicine grants the physician privileges and imposes great responsibilities. The people of Alabama expect a licensed physician to be competent and worthy of their trust. As patients, they come to the physician in a vulnerable condition, believing the physician has knowledge and skill that will be used for their benefit.

(4) Patient trust is fundamental to the relationship thus established. It requires the following:

(a) that there be adequate communication between the physician and the patient;

(b) that there be no conflict of interest between the patient and the physician or third parties;

(c) that intimate details of the patient’s life shared with the physician be held in confidence;

(d) that the physician maintain professional knowledge and skills;

(e) that there be respect for the patient’s autonomy;

(f) that the physician be compassionate;

(g) that the physician be an advocate for needed medical care, even at the expense of the physician’s personal interests; and

(h) that the physician provide neither more nor less than the medical problem requires.

(5) The Board believes the interests and health of the people of Alabama are best served when the physician-patient relationship, founded on patient trust, is considered sacred, and when the elements crucial to that relationship and to that trust–communication, patient privacy, confidentially, competence, patient autonomy, compassion, selflessness, and appropriate care–are foremost in the hearts, minds, and actions of the physician licensed by the Board.

(6) This same fundamental physician-patient relationship also applies to physician assistants.

The Alabama Supreme Court did make the following exception in the Mull v. String case. The court held when a patient sues a defendant other than his or her physician, and the information acquired by the physician as a result of the physician-patient relationship would be legally discoverable by the defendant in that litigation, then the patient will be deemed to have waived any right to proceed against the physician for the physician’s disclosure of this information to that defendant or that defendant’s attorney. This narrow exception does not, however, encompass a physician’s disclosure of information acquired during the physician-patient relationship to persons other than such a defendant or that defendant’s attorney. Therefore, Dr. Wagner’s attempt to tell her son would not fall within this exception.

Even though Dr. Wagner wants to protect her son, she cannot expose Bree’s condition.  Bree is Dr. Wagner’s patient and everything she told Dr. Wagner within that doctor-patient relationship is confidential.  If Dr. Wagner tells, she would be violating doctor-patient confidentiality and her fiduciary duty to Bree as well as risking her license to practice.